It takes a certain chutzpah for Congress to pass a law that grants discretion to the executive branch and then complain when the executive branch actually uses that discretion. But that's exactly what happened recently when the Department of Homeland Security freed 2,000 people from immigration detention.
When news of the detainee releases broke in late February, Republican lawmakers waxed indignant, calling the move "abhorrent" and claiming, in a flurry of outraged letters to the Department of Homeland Security Secretary Janet Napolitano, that the freed detainees included violent criminals and child molesters.
Never mind that, as Immigration and Customs Enforcement Secretary John Morton testified on Thursday, 70 percent of those released had no criminal record, and the rest had been convicted of misdemeanors or minor charges. Or that current law, though it mandates detention for immigrants convicted of certain serious crimes, explicitly gives the federal government leeway to let others go free on bail or parole while they await deportation hearings.
Today, [3/19] the House Judiciary Committee is holding a hearing on the releases, and we can only hope that the discussion will be more constructive -- and indeed, more reality-based -- than the initial back-and-forth. Lawmakers should use the opportunity to examine some basic questions about U.S. immigration policy, two in particular: First, what is the purpose of immigration detention? And, second, if the recently released detainees were not flight or safety risks, why was the U.S. detaining them in the first place?
The point of immigration detention is to ensure that immigrants show up for their hearings, and, in certain cases, to protect public safety. The discretion Congress built into the system is a good thing, as it allows the executive branch to distinguish between a violent criminal and, say, someone convicted of a traffic violation, or between an immigrant who poses a flight risk and one who has strong family ties in the United States, when evaluating whom to detain.
Unfortunately, in recent years, the federal government has used this discretionary power too little, not too much. The result: too many immigrants have been detained unnecessarily, at significant cost to the U.S. taxpayer.
This brings us to the question of why the noncitizens recently released were detained in the first place. And there, the answer is less than clear. For several years, Human Rights Watch has documented numerous cases in which people were detained unnecessarily -- including under mandatory detention provisions.
For example, Oscar W. spent nine months in immigration detention even though he had a strong claim to remain in the United States. Oscar (a pseudonym) had been adopted by U.S. citizen parents when he was a child, but they never filed the paperwork for his lawful permanent resident status. As an adult, Oscar married a U.S. citizen, and had three U.S. citizen children. A fraud conviction for writing bad checks triggered Oscar's detention. He was detained even though he was eligible for lawful permanent resident status based on his marriage. Oscar was ultimately granted lawful permanent resident status and permitted to remain in the United States.
Had the immigration judge been able to grant Oscar bond while the court addressed his case, Oscar's U.S. citizen family would not have suffered the painful and difficult separation caused by his detention, and the government could have saved the thousands of dollars spent on his detention.
The overuse of immigration detention is also questionable in light of other, less costly, forms of supervision that can help to ensure that a person will appear at a deportation hearing, including GPS monitors and periodic reporting to immigration officials
The United States should be spending its resources on detaining only immigrants who are dangerous or unlikely to appear for hearings. Instead, the United States is detaining people like Oscar W. The news is not that these detainees were released. The news is that they were detained in the first place.
